The polluter pays
principle as part of a
normative framework
for a sustainable water
management
Utrecht Centre for Water, Oceans and Sustainability Law
Conference: Water and Ocean Law in times of Climate Change
Utrecht 31 October/1 November 2013
Berthy van den Broek [G.M.vandenBroek@uu.nl]
Petra E. Lindhout [P.E.Lindhout@uu.nl]
Content
• Genesis and development of the polluter pays
principle
• Interpreting the polluter pays principle
• Relevant European Case law
• Two examples
Genesis & Development at the OECD
PPP includes / allowes
Extra Remark
1972
Costs of pollution
prevention
Costs of control measures
Insofar as decided by public
authorities
1989
+ Damage from accidental
pollution
+ Costs for (also public)
prevention / risk control
Use of (earmarked) fees and
taxes allowable as damage
cost recovery tool for
hazardous installations
2001
+ Liability payments
Further internalisation of
environmental costs;
Specific tax possibilities
(green taxes)
The scope of application of the polluter pays principle has
increased during the years;
Polluter pays principle in EU Law
• EAP 1973: introduction of the PPP
• PPP is meant to be an incentive to reduce
pollution and use less polluting techniques
• 1986: Introduction in primary EU Law in the
Single European Act (Article 130 r(2))
• EAP 1992: link to sustainable development
• EAP 2002: principles as a basis for policy
making
• 2007: Lisbon Treaty: Integration of
environmental protection requirements must
take place ‘with a view to promoting sustainable
development’
Interpreting the polluter pays principle
• Economic interpretation: internalization of environmental
costs
– Strict: excluding liability payments and green taxes
– Broad: including liability payments and green taxes
• Equity interpretation: fair distribution of the costs
– Don’t pass the bill to others
– Don’t pass the bill to future generations
European Case Law
Standley:
PPP reflects principle of proportionality
C-293/97
Pontina Ambiente:
C-172/08
ERG & others:
C-378/08
a non-polluter or one not contributing to
(the risk of) pollution may not be
burdened
use presumptions in determining causation
between certain activities and
pollution/environmental damage
Futura Immobiliare: differentiation in contributions of
C-254/08
categories of polluters is allowable, unless
the costs are manifestly disproportionate
in relation to pollution capacity
Example I
guidelines for burden-sharing in
cases of multiple source pollution
• In cases of multiple source pollution the PPP
requires a fair distribution of burdens
• A programme of measures should address all
sources of pollution : all polluters should
contribute to the abatement of the pollution
• Polluters can only be obliged to contribute to the
abatement of pollution in proportion to their
contribution to the aggregate problem
Example II: cost recovery for water services
Article 9 (1) WFD Recovery of costs for water services:
1. Member States shall take account of the principle of recovery of the costs
of water services, including environmental and resource costs, having regard
to the economic analysis conducted according to Annex III, and in accordance
in particular with the polluter pays principle.
Member States shall ensure by 2010:
- that water-pricing policies provide adequate incentives for users to use
water resources efficiently, and thereby contribute to the environmental
objectives of this Directive,
- an adequate contribution of the different water uses, disaggregated into at
least industry, households and agriculture, to the recovery of the costs of
water services, based on the economic analysis conducted according to
Annex III and taking account of the polluter pays principle.
Member States may in so doing have regard to the social, environmental and
economic effects of the recovery as well as the geographic and climatic
conditions of the region or regions affected.
Example II: cost recovery for water services
Does the polluter pays principle restrict MS in / affects
application of cost recovery for water services?
- Fundamental environmental principle
- Explicitly mentioned twice in the provision:
- In general/overall application of cost recovery
- Specifically with regard to the user groups
contribution to the costs of water services
- Markers provided by ECJ Case Law
The polluter pays principle as part of a
normative framework for a sustainable water
management
• Discussion: It is not justifiable to let concerns
of affordability prevail over the idea
that the polluter should pay.
• Paper of this presentation is forthcoming;
• For further levelling or discussion, please contact
us:
• G.M.vandenBroek@uu.nl
• P.E.Lindhout@uu.nl